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United States v. Yanez-Vivanto

United States District Court, C.D. California.
Jan 13, 2020
433 F. Supp. 3d 1121 (C.D. Cal. 2020)

Opinion

Case No. CR 18-0654 FMO

2020-01-13

UNITED STATES of America, Plaintiff, v. Samuel Francisco YANEZ-VIVANTO, Defendant.

Agustin Dorian Orozco, AUSA - Office of US Attorney General Crimes Section, Los Angeles, CA, for Plaintiff.


Agustin Dorian Orozco, AUSA - Office of US Attorney General Crimes Section, Los Angeles, CA, for Plaintiff.

ORDER RE: MOTION TO DISMISS INDICTMENT

Fernando M. Olguin, United States District Judge

Samuel Francisco Yanez-Vivanto ("defendant") is charged in a single count indictment with illegal reentry in violation of 8 U.S.C. § 1326. (Dkt. 1, Indictment). Defendant filed the instant Motion to Dismiss ("Motion"), arguing that (1) the underlying removal order was invalid because the Immigration Judge ("IJ") did not have jurisdiction to issue such an order; and (2) the process underlying the removal proceeding was fundamentally unfair. (See Dkt. 31, Motion at 5-20). Having reviewed and considered all the briefing filed with respect to defendant's Motion and the oral argument presented at the hearing on November 22, 2019, the court concludes as follows.

BACKGROUND

On May 12, 2006, the Immigration and Naturalization Service ("INS") served defendant with a Notice to Appear ("NTA") for removal proceedings under 8 U.S.C. § 1229. (See Dkt. 31-5, Exh. 4, NTA). Other than stating that the removal proceeding would be held "on a date to be set at a time to be set[,]" (id. ), the NTA did not specify the time, date, or place of the proceeding, nor did it specify the address of the immigration court where the charging document would be filed. (See, generally, id. ). The NTA did indicate the address where defendant was housed (in the Mira Loma Detention Center), which, in this instance, was also the location of the immigration court where defendant's removal proceeding was held. (See Dkt. 35, Government's Opposition ("Opp.") at 3).

On May 26, 2006, defendant received a Notice of Hearing ("NOH"), advising him of the time, date, and place of his removal proceeding. (See Dkt. 35-10, Notice of Hearing). Defendant's removal proceeding was held on June 21, 2006. (See Dkt. 31-7, Exh. 6, Order of IJ). The proceeding took place in two parts: a group portion where the IJ addressed all individuals, and an individual portion where the IJ asked defendant a series of questions regarding his arrival to the United States, his family, and his criminal history. (See Dkt. 31-3, Transcript of Removal Proceeding ("Transcript")). During the hearing, defendant indicated that his parents were in the process of obtaining lawful immigration status, and that his sisters already had lawful immigration status. (See id. at 3). The IJ told defendant that a visa would not be available to him for about eight years based on the petition filed by his sisters. (See id. ). The IJ stated that the only other relief available to defendant was voluntary departure, but that he "d[id]n't know why [he] should grant voluntary departure to [defendant.]" (Id. ). The IJ then asked defendant, "Do you believe you deserve to be allowed to return voluntarily to Mexico?", to which defendant replied, "Yes" and the IJ then asked him, "Why?" (Id. ). Defendant's response was unclear, as he simply stated, "Well, I don't know. No." (Id. at 4). Rather than attempt to clarify the record, the IJ simply stated, "No?" to which defendant responded, "No." (Id. ). The IJ then ordered defendant removed and defendant was subsequently deported from the United States. (Dkt. 35-13, Exh. 12, Notice of Intent/Decision to Reinstate Prior Order).

Because the NOH was not included in defendant's A-file, the government requested it from the Executive Office for Immigration Review. After receiving the NOH, the government provided a copy to defendant on November 5, 2019. (Dkt. 35, Opp. at 4 n. 3).

On August 31, 2018, defendant was convicted of possession of a firearm in state court and, upon notice that defendant was in state custody, ICE lodged a detainer with the Los Angeles Police Department. (See Dkt. 35, Opp. at 9). On September 27, 2018, the government filed the Indictment in this case. (See Dkt. 1, Indictment).

LEGAL STANDARD

"A defendant charged under § 1326 has a due process right to collaterally attack his removal order because the removal order serves as a predicate element of his conviction." United States v. Raya-Vaca, 771 F.3d 1195, 1201 (9th Cir. 2014) (internal quotation marks omitted). To prevail in this collateral attack, defendant must show: (1) exhaustion of "administrative remedies that may have been available [to him] to seek relief against the [prior removal] order; (2) the deportation proceedings at which the [removal] order was issued improperly deprived [him] of the opportunity for judicial review; and (3) that the entry of the [removal] order was fundamentally unfair." 8 U.S.C. § 1326(d) ; United States v. Pallares-Galan, 359 F.3d 1088, 1095 (9th Cir. 2004). A removal order is considered "fundamentally unfair" if defendant shows his due process rights were violated by defects in the underlying deportation proceeding and that he suffered prejudice as a result of those defects. See id. A violation of defendant's due process rights that renders the proceeding fundamentally unfair satisfies the exhaustion of administrative remedies and opportunity for judicial review prongs of 8 U.S.C. § 1326(d). See United States v. Ubaldo-Figueroa, 364 F.3d 1042, 1050 (9th Cir. 2004) (finding that the fundamentally unfair deportation proceeding "exempted [defendant] from the exhaustion bar" and also "deprived [defendant] the opportunity for meaningful judicial review."); United States v. Gomez, 757 F.3d 885, 892 (9th Cir. 2014) (finding the first two prongs of 8 U.S.C. § 1326(d) satisfied upon finding that "immigration officials in the underlying removal proceeding violated a regulation designed to protect an alien's right to judicial review.").

DISCUSSION

Title 8 Code of Federal Regulations § 1003.14(a), entitled "Jurisdiction and commencement of proceedings" states that "[j]urisdiction vests, and proceedings before an Immigration Judge commence, when a charging document is filed with the immigration court by the [Immigration and Naturalization Service.]" A "charging document" includes "a Notice to Appear" as well as "a Notice of Referral to Immigration Judge[ ] and a Notice of Intention to Rescind and Request for Hearing by Alien." Id. at § 1003.13. Another regulation sets forth the contents of the NTA. See id. at § 1003.15(b)-©. Under § 1003.15(b), the NTA must include, among other requirements, "[t]he address of the Immigration Court where the Service will file the Order to Show Cause and Notice to Appear[.]" Id. at § 1003.15(b). The necessary contents of a NTA are also enumerated by statute. See 8 U.S.C. § 1229(a) (requiring, among other things, the NTA to specify "[t]he time and place at which the proceedings will be held.")

Unless otherwise noted, all section references are to Title 8 of the Code of Federal Regulations.

In United States v. Karingithi, 913 F.3d 1158 (9th Cir. 2019), the Ninth Circuit held that because the statute, 8 U.S.C. § 1229(a), "is silent as to the jurisdiction of the Immigration Court," the regulations govern when jurisdiction vests in the immigration court. Id. at 1160. The Ninth Circuit stated that the question of "whether the Immigration Court has jurisdiction over removal proceedings ... is governed by federal immigration regulations, which provide that jurisdiction vests in the Immigration Court when a charging document, such as a notice to appear is filed[.]" Id. at 1158. Thus, "[t]he regulatory definition [of Notice of Appear] ... governs the Immigration Court's jurisdiction." Id. at 1160 ; see Deocampo v. Barr, 766 F.App'x 555, 557 (9th Cir. 2019) (" 8 C.F.R. § 1003.15(b) details the specific information that an NTA must contain in order to properly vest jurisdiction in the IJ[.]").

At issue in Karingithi was the time and date requirement set forth in § 1003.18 which required that such information be included "where practicable." See 913 F.3d at 1160. The Ninth Circuit held that "[a] notice to appear need not include time and date information" to meet "the regulatory requirements and therefore vest[ ] jurisdiction in the IJ." Id. at 1160. The Ninth Circuit reasoned that reading a time and date "requirement into the regulations would render meaningless their command that such information need only be included ‘where practicable.’ " Id. (citing 8 C.F.R. § 1003.18(b) ).

Defendant argues that jurisdiction never vested with the immigration court because the NTA did not, as required by § 1003.15(b), include the "address of the Immigration Court" where the NTA would be filed. (See Dkt. 31, Motion at 8). As noted above, Karingithi requires the court to look to the regulations to determine when jurisdiction vests. 913 F.3d at 1159-60. Under the applicable regulations, "[j]urisdiction vests ... when a charging document [such as a NTA] is filed." 8 C.F.R. §§ 1003.13 & 1003.14. A "notice to appear" "must ... include" the information set forth in § 1003.15(b), which includes the "address of the Immigration Court." Id. at § 1003.15, Thus, a notice to appear – such as the one at issue in this case – that lacks the address of the immigration court does not "satisf[y[ the regulatory requirements," Karingithi, 913 F.3d at 1159, and cannot vest the immigration court with jurisdiction. See United States v. Gutierrez-Ramirez, 2019 WL 3346481, *4 (N.D. Cal. 2019). Other courts have reached the same conclusion and their reasoning is persuasive. See, e.g., id.; United States v. Martinez-Aguilar, 2019 WL 2562655, *5-6 (C.D. Cal. 2019) ("[I]f the charging document is insufficient to ‘vest’ jurisdiction with the Immigration Court, the Immigration Court logically does not maintain authority to issue any removal orders in that case governed by the charging document, irrespective of whether the defendant actually appears in court."); United States v. Ramos-Urias ("Ramos I"), 348 F.Supp.3d 1030, 1035 (N.D. Cal. 2019) ("[W]here there is no valid charging document–in other words, no ‘notice to appear’–the immigration judge lacks jurisdiction to conduct removal proceedings."); United States v. Ortiz, 347 F.Supp.3d 402, 406 (D.N.D. 2018) ("When there is no valid charging document, the Immigration Judge does not have jurisdiction to conduct removal proceedings.").

The court recognizes that other courts have reached a different conclusion. See, e.g., United States v. Medina, 2019 WL 4462701, *5-13 (C.D. Cal. 2019) ; United States v. Arteaga-Centeno, 2019 WL 3207849, *6-8 (N.D. Cal. 2019) ; United States v. Mendoza, 2019 WL 1586774, *2-3 (N.D. Cal. 2019). The court respectfully disagrees with those conclusions for the reasons discussed below and for the reasons set forth in cases cited above.

The government asserts that "this Court need not reach the merits of defendant's contention that 8 C.F.R. § 1003.14 is a jurisdictional prerequisite to the immigration court's authority" but that if it does, "it should join every other circuit that has addressed the jurisdictional status of § 1003.14 in holding that it is a claims processing rule, not a rule establishing subject matter jurisdiction." (Dkt. 35, Opp. at 13-14). The government's assertion is unpersuasive. This is a case about the requirements set forth in § 1003.15(b) and whether omitting any of those requirements affects the immigration court's jurisdiction. And "it is clear that Karingithi contemplates that Section 1003.15 is jurisdictional." Gutierrez-Ramirez, 2019 WL 3346481, at *6. " Section 1003.14 vests jurisdiction with a charging document, defined in Section 1003.13 as a notice to appear, defined in Section 1003.15 as having certain requirements." Gutierrez-Ramirez, 2019 WL 3346481, at *6 (citing Karingithi, 913 F.3d at 1160 ). "The logic of the regulations is that Section 1003.15's requirements directly control jurisdiction." Id. The government's reliance on out-of-circuit authority to support its argument that § 1003.14(a) is merely a claims processing rule, (see Dkt. 35, Opp. at 14-15), is unpersuasive as those cases are either distinguishable or conflict with the Ninth Circuit's decision in Karingithi. For example, in Perez-Sanchez v. United States Attorney Gen., 935 F.3d 1148 (11th Cir. 2019), the Eleventh Circuit noted that it was not persuaded by the Ninth Circuit's decision in Karingithi that § 1003.14 sets forth a jurisdictional rule. See id. at 1155 ("Many of our sister circuits have accepted the proposition that 8 C.F.R. § 1003.14 sets forth a jurisdictional rule.... We are not persuaded.") (citing Karingithi, 913 F.3d at 1160 ). Similarly, United States v. Cortez, 930 F.3d 350 (4th Cir. 2019), specifically departed from Karingithi in determining that § 1003.14 is "something more like a docketing rule ... establishing exactly what it takes properly to commence a case before [an immigration court]." Id. at 362 (internal citations and quotation marks omitted). Also, Pierre-Paul v. Barr, 930 F.3d 684 (5th Cir. 2019), concerned a NTA that lacked the time and date of the hearing, not a specifically enumerated requirement set forth in § 1003.15(b). See id. at 689-92. In holding that § 1003.14 is a claims-processing rule, the Fifth Circuit did not cite or discuss the Karingithi Court's holding "that the regulations ... define when jurisdiction vests." 913 F.3d at 1160 ; see generally, Pierre-Paul, 930 F.3d at 691-93.

The requirements outlined in § 1003.15(b) "do not mirror the typical ‘subject-matter jurisdiction’ of a court and are more akin to pleading requirements that must be included to initiate a particular action properly." Martinez-Aguilar, 2019 WL 2562655, at *5. "[I]f the Court were to construe ‘jurisdiction’ as specifically meaning the Immigration Court's ‘subject-matter jurisdiction,’ such an interpretation may imply that the Immigration Court did not have subject-matter jurisdiction to hear the type of immigration case brought before it under any circumstance, which is plainly incorrect." Id.

Like Pierre-Paul, the Seventh Circuit's analysis did not concern the effect of an NTA that lacked the requirements of § 1003.15(b). See Ortiz-Santiago v. Barr, 924 F.3d 956, 964 (7th Cir. 2019).

The government also argues that the fact that the NTA did not include the address of the immigration court did not render the proceedings fundamentally unfair because "Defendant received the date, time, and place in a Notice of Hearing ... and appeared at the determined time and place." (Dkt. 35, Opp. at 11). The government's argument is unpersuasive. First, "[t]he regulations do not mention a Notice of Hearing, and in no way indicate that service of a subsequent document on the noncitizen can cure the deficient charging document filed with the Immigration Court." Gutierrez-Ramirez, 2019 WL 3346481, at *7 ; Ramos I, 348 F.Supp.3d at 1036 ("The immigration court's subsequent service of a notice of hearing also does not cure Mr. Ramos-Urias's deficient NTA. Under the Department of Justice's own regulations, a notice of hearing is not listed as a charging document, and only charging documents can vest an immigration court with jurisdiction.") (emphasis in original); Martinez-Aguilar, 2019 WL 2562655, at 3 ("[E]ven if Defendant's subsequent [notice of hearing] may cure the defects in the Notice to Appear regarding the time and place of the hearing ... such subsequent notice is not sufficient to cure the absence of the ‘address of the immigration court’ as required by § 1003.15(b)."); see also Lopez v. Barr, 925 F.3d 396, 405 (9th Cir. 2019) (holding that "a Notice to Appear that is defective under Pereira [v. Sessions, ––– U.S. ––––, 138 S.Ct. 2105, 201 L.Ed.2d 433 (2018) ] cannot be cured by a subsequent Notice of Hearing. The law does not permit multiple documents to collectively satisfy the requirements of a Notice to Appear."). The same reasoning applies with respect to the government's argument that defendant's appearance at the removal proceeding somehow cured the defect. See Gutierrez-Ramirez, 2019 WL 3346481, at *7 ("Nothing in the regulations supports such a holding."); Martinez-Aguilar, 2019 WL 2562655, at *4 ("[A]s a practical matter, treating any jurisdictional defects as pertaining only to personal jurisdiction would all but eliminate the need to ensure that a Notice to Appear actually conforms to the enumerated mandates of § 1003.15 ; as soon as the defendant appears before the Immigration Court without objecting to personal jurisdiction, any such defects in the Notice to Appear would thereby become wholly irrelevant. The Court declines to adopt an interpretation of § 1003.14(a) that would render the mandates of § 1003.15 illusory and unenforceable.").

Second, even assuming the NOH could cure the jurisdictional defects in the NTA, the NOH does not indicate, as required by § 1003.15(b), the "address of the Immigration Court where the Service will file the ... Notice to Appear." (See, generally, Dkt. 35-10, Exh. 9, Notice of Hearing). The government's attempts to conflate the place of the hearing with the address where the charging document is filed fails to recognize that the two locations may be different. A defendant may have the hearing at one location, while the charging document may be filed at another. See Gutierrez-Ramirez, 2019 WL 3346481, at *5 ("This Court reads those two locations as unique, independent requirements. The location of the initial removal hearing need not necessarily be the address where the Immigration Court is located. Karingithi supports this reading, by distinguishing the requirements of Section 1003.15(b) from those in Section 1003.18, stating that Section 1003.15(b) does not require the time and date of proceedings to appear in the initial notice.") (internal quotation marks omitted). Thus, putting aside the fact that the NTA's failure to include the address of the immigration court where the NTA would be filed renders the NTA irreparably deficient, the fact remains that even assuming the NOH could remedy that deficiency, the NOH does not specify or otherwise indicate in which immigration court the NTA was filed.

The government's claim that including the address where defendant was "currently residing" is sufficient because it mirrored "the location where his removal proceedings would be held[,]" (see Dkt. 35, Opp. at 11-12), does not establish that the NTA was filed at the immigration court where defendant was in custody. Further, the government's contention that "context provided the defendant with the same information," (id. at 12), is insufficient for the government to meet its obligation to provide notice of the charges and where the NTA was filed, and improperly shifts the burden to defendant – a teenager without an attorney in removal proceedings for the first time – to somehow figure out on his own where the charging document was filed. There is no evidence to indicate that defendant knew that the place where he was being detained included an immigration court. In any event, there are several immigration courts in the Southern California area and there is no way defendant could have known in which immigration court the NTA was or would be filed.

Finally, with respect to the requirements of 8 U.S.C. § 1326(d), defendant's removal was fundamentally unfair. The immigration court did not have jurisdiction to issue the removal order and thus defendant's due process rights were violated. See, e.g., Gutierrez-Ramirez, 2019 WL 3346481, at *8 ("Because the Immigration Court did not have jurisdiction to issue the removal order, Defendant's due process rights were violated."); Martinez-Aguilar, 2019 WL 2562655, at *6 ("Because Defendant was removed pursuant to a removal order without jurisdiction, and therefore without regulatory authority, Defendant's due process rights were violated, and Defendant's removal was ‘fundamentally unfair’ for purposes of 8 U.S.C. § 1326(d)(3)."); Ramos I, 348 F.Supp.3d at 1037 (finding fundamental unfairness where the immigration court did not have jurisdiction). Defendant's "appearance at the [removal proceeding] does not change th[e] result because the hearing [was] void for lack of jurisdiction and his opportunity to be heard was not a fair one." Gutierrez-Ramirez, 2019 WL 3346481, at *8 (internal quotation marks omitted). "Because Defendant has demonstrated that his removal was fundamentally unfair, he need not show exhaustion of administrative remedies or that he was denied judicial review[.]" Id. at *8 (internal quotation marks omitted); see United States v. Rojas-Osorio, 381 F.Supp.3d 1216, 1233 (N.D. Cal. 2019) ("[T]he Ninth Circuit has found a defendant exempted from the exhaustion and judicial review requirements in § 1326(d) when the ‘IJ did not inform him that he was eligible for relief from removal.’ ") (internal modification omitted); Martinez-Aguilar, 2019 WL 2562655, at *6 ("Therefore, because the Notice to Appear issued to Defendant was jurisdictionally deficient, the subsequent removal order which caused Defendant to be deported was invalid as issued without proper jurisdiction, and Defendant does not need to show that he was prejudiced by the lack of jurisdiction before the Immigration Court."). In short, because there was no valid charging document vesting jurisdiction with the immigration court, the government cannot sustain a charge of illegal reentry, and the indictment must be dismissed.

This Order is not intended for publication. Nor is it intended to be included in or submitted to any online service such as Westlaw or Lexis.

CONCLUSION

Based on the foregoing, IT IS ORDERED THAT defendant's Motion to Dismiss Indictment Under 8 U.S.C. § 1326(d) (Document No. 31) is granted . Judgment shall be entered accordingly.


Summaries of

United States v. Yanez-Vivanto

United States District Court, C.D. California.
Jan 13, 2020
433 F. Supp. 3d 1121 (C.D. Cal. 2020)
Case details for

United States v. Yanez-Vivanto

Case Details

Full title:UNITED STATES of America, Plaintiff, v. Samuel Francisco YANEZ-VIVANTO…

Court:United States District Court, C.D. California.

Date published: Jan 13, 2020

Citations

433 F. Supp. 3d 1121 (C.D. Cal. 2020)